Best v. United States, 4363.

• Citation: 184 F.2d 131
• Decision Date: 06 July 1950
• Docket Number: No. 4363.,4363.
• Parties: BEST v. UNITED STATES.
• Court: U.S. Court of Appeals — First Circuit

184 F.2d 131 (1950)

BEST v. UNITED STATES.

No. 4363.

United States Court of Appeals First Circuit.

July 6, 1950.

COPYRIGHT MATERIAL OMITTED

Henry M. Leen, Boston, Mass. (Charles W. Bartlett and David E. Place, Boston, Mass., with him on brief), Robert H. Best, pro se, for appellant.

Fred E. Strine, Special Assistant to the Attorney General (George F. Garrity, United States Attorney, Boston, Mass., and Rosalie M. Moynahan, Attorney, Department of Justice, Washington, D. C., with him on brief), for appellee.

Before MAGRUDER, Chief Judge, and GOODRICH and WOODBURY, Circuit Judges.

MAGRUDER, Chief Judge.

This is an appeal from a judgment sentencing Robert H. Best to life imprisonment and a fine of $10,000, upon a conviction by a jury on an indictment charging the crime of treason against the United States. The charge was predicated upon appellant's radio broadcasting activities within Germany and Austria during World War II, under the auspices of the German Radio Broadcasting Company, an agency of the German Government under the jurisdiction of the Ministry of Public Enlightenment and Propaganda. The case bears a close resemblance to Chandler v. United States, 1 Cir., 1948, 171 F.2d 921, certiorari denied 1949, 336 U.S. 918, 69 S. Ct. 640, 93 L.Ed. 1081, in respect of the form and substance of the indictment, the nature of the evidence upon which conviction was had, and for the most part the legal questions raised on appeal.

There was little or no conflict in the testimony, certainly not in any important particular. On the evidence, the jury were warranted in finding the following:

Best was born in Sumter, South Carolina, on April 16, 1896, the son of an itinerant Methodist preacher. He was, then, an American citizen from birth, and he has remained such throughout. After receiving a high school and college education, he entered the U.S. military service during World War I. Afterwards, he attended the School of Journalism at Columbia University. Upon his graduation in 1922 he went abroad on a Pulitzer traveling fellowship, and traveled extensively in Europe. Toward the end of 1922, Best came to Vienna, which he liked very much. He settled down there, and from time to time did journalistic work for various English and American newspapers, but chiefly he became a "stringer", or free-lance correspondent, for the United Press.

After the Nazis came to power in Germany, Best found much to admire in the Hitler regime. He became more and more fanatically anti-Jewish and anti-Communist. In the summer of 1941 he made overtures to be allowed to broadcast to America over the German radio, to warn against certain tendencies in the foreign policy of the Government of the United States; but no such arrangement was consummated at that time.

When the Japanese attack on Pearl Harbor brought the United States into the war, Best was promptly taken into custody in Vienna by the Gestapo and held in jail. A few days thereafter he was lodged in an internment camp in Bad Nauheim, Germany, with a group of American journalists and diplomats, chief of whom was Leland M. Morris, who had been Chargé d'Affaires at the U.S. Embassy in Berlin. Best informed Morris of his desire to remain in Germany during the war. Morris objected that Best's name "was on the list of exchangeables to go to the United States with the Embassy group, and that his withdrawal would cause negotiation and delay which would complicate the movement of the whole group." Best, however, persisted in his decision to withdraw from this group of exchangeable Americans. His reason for remaining behind, as variously expressed at the time, was that some American ought to stay in Germany to record events and tell the story, or that "an American should remain in Germany to be sort of a mediator, a go-between, after Hitler had won the war, someone who would interpret the German mind to Americans and the American mind to Germans." Another inducement perhaps was that Best had in mind to marry a Viennese lady, which in fact later he did.

During his stay at Bad Nauheim, Best communicated with various German officials with reference to his desire to remain in Germany. He was given permission to travel to Berlin unaccompanied, and there he talked to one Rasche, an official of the Press Department of the Foreign Office, who particularly inquired whether Best was still interested in speaking over the German radio. Through Rasche, Best had an interview with Werner Plack, a member of the Radio Division of the Foreign Office, whose "duties included recruiting commentators and speakers for the radio which was beamed to the United States, and assembling material, and generally giving them ideas". According to Best's testimony, Plack "seemed to be interested in sounding me out on my attitude toward various things, and in this connection we discussed, as I recall, quite a bit about the Communist menace to the world, or, as I recall, the Bolshevist menace. And then there was some reference also to the standpoint with regard to the Jewish International, and he brought up certain phases of it." Evidently Best's viewpoint was satisfactory, for arrangements were soon made for him to work in the U.S.A. Zone of the Short Wave Station of the German Radio Broadcasting Company, at a compensation of 1500 Reichsmarks per month, approved by the Propaganda Ministry. This compensation Best characterized as "a bit liberal".

In April, 1942, Best commenced his radio activities in Berlin. At the outset he served in a dual capacity, as a news editor and as a radio commentator.

His job as news editor was to take raw German news items which had been supplied to him, "translating them or writing them into English as he saw fit, and editing them for use in the news service." He also wrote the so-called Bell reports, which "covered the number of allied vessels sunk by German warships, and gave description of the circumstances and where it occurred." At the beginning of these broadcasts "bells were rung to indicate the number of ships sunk, and then there would follow a short commentary by Mr. Best."

Best's commentaries, which were usually recorded for later broadcast, were mostly titled "BBB, Best's Berlin Broadcasts". He was also the author of several shorter commentaries, known as "Best's Little Lifesavers", recorded for broadcasting to American and British troops. Occasionally, also, he substituted for other commentators, including Douglas Chandler. In addition, he participated in frequent round-table conferences, gatherings of various news commentators of the U.S.A. Zone (among whom, upon occasion, were Douglas Chandler and the notorious "Lord Haw Haw"), at which gatherings the participants "discussed before a microphone certain political issues that had been previously agreed on, but without a recording, everyone being able to express his point of view, within the limits of German directives prohibiting discussion of certain information or certain topics."

The German Short Wave Station was moved to Koenigswusterhausen, a short distance from Berlin, in August, 1943. For a time Best continued to make his recordings there. In November or December of 1943, he expressed to the Radio Attaché of the German Embassy in Italy a willingness to go to Italy to broadcast over the Italian short wave to American and British troops stationed in Italy and Africa, but this particular arrangement was not executed. At the end of 1943 Best was allowed to move to Vienna, after which he ceased his work as a news editor. However, at Vienna he made recordings of his commentaries, which were transmitted to Koenigswusterhausen and there broadcast to the United States; and he continued there to make such recordings until a few days before the Russian army reached Vienna. Over the whole period, Best made perhaps as many as 300 broadcasts. These broadcasts were monitored and recorded at the monitoring station of the Federal Communications Commission in Silver Hill, Maryland; and numerous witnesses testified to having picked up Best's broadcasts on their short wave receiving sets at scattered points throughout the United States.

Goebbels regularly passed on down through a hierarchy of officials his directives as to the German radio propaganda line. Best frequently attended conferences held by the head of the U.S.A. Zone, who communicated to the commentators the standard directives and daily directives, and told them "what they should write about, what they should not write about, what they should ignore, what they should stress and underline, and which subjects they were to handle in particular any particular day." Best made a gesture of independence, and once went on a "sit-down strike", when his superiors objected to the phraseology of some of his manuscripts, especially in his capacity of news editor. The disagreement seems to have been not as to fundamental subject matter, but certain of the German officials thought, not without reason, that expressions used by Best were so vicious and intemperate in tone as to be self-defeating as propaganda. Best was indulged and humored a bit by the officials, presumably because his work as a whole was regarded by them as useful to the German cause, and some compromise was patched up. Of course, all of Best's manuscripts or recordings were subjected both to military and political censorship prior to broadcasting. On the issue of appellant's treasonable intent, seven authenticated recordings of appellant's broadcasts were played back at the trial, and manuscripts of ten of the "BBB" broadcasts were read to the jury. In these exhibits may be found all the main Nazi propaganda themes, with particular emphasis upon the alleged menace of a Jewish world-wide conspiracy and Jewish infiltration into controlling positions in the Government of the United States, and also upon the depicting of Hitler's Germany as a great bulwark of Christianity and civilization against Bolshevism.

Appellant was...